Today the Supreme Court unanimously dismissed the government’s appeal in the widely-publicised Rwanda litigation, concluding that there are substantial grounds to believe that that asylum seekers sent there by the UK government would face a real risk of refoulement, i.e. being sent back to their countries of origin, where they could be persecuted. The effect of this judgment is that Rwanda cannot be treated as a safe third country to which to remove asylum seekers.
In practice, the outcome of this judgment is that the £140 million agreement signed by the Rwandan and UK government will not have its intended effect, namely that asylum seekers would be sent to Rwanda to have their asylum claims processed and would not be able to return to the UK.
The Supreme Court emphasised that the question of risk was one for the court to make for itself, involving a fact-sensitive examination of the evidence before it, including the assurances which the UK Government had received from the Rwandan authorities about how the scheme would operate. Having examined the evidence at some length, in particular the evidence from the UNHCR criticising the Rwandan asylum system, the Court concluded that there was a real risk that genuine refugees would be returned, directly or indirectly, to their countries of origin, where they could face ill-treatment. In particular, the Court noted that the Rwandan asylum appeal system was completely untested and there were grounds to question its effectiveness, and external monitoring would not prevent failures from occurring in the first place.
The Court did accept that the Rwandan asylum system could and will be built up, but they were not currently in place.
The judgment makes clear that its conclusions are not only based on the Human Rights Act 1998 and the European Convention on Human Rights, but also on international and domestic law which prohibits refoulement.
A second ground, on which individuals subject to the Rwanda plan had cross-appealed, was whether EU retained law prohibited the government’s plans. The Procedures Directive prevented removal to even safe third countries unless an asylum seeker had a connection with that country, which would have been a potential knock-out blow to the entire scheme. However, the Supreme Court held that the relevant provisions within the Directive had ceased to be part of UK law as a result of provisions in the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, which is part of the legislation dealing with the consequences of the UK’s withdrawal from the European Union.
The Supreme Court judgment may be found here.